ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Plaintiff Wang & Wang LLP ("Wang") and Defendant Banco Do Brasil S.A.'s ("Banco") cross motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiff's motion is DENIED and Defendant's motion is GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Banco Do Brasil, S.A. is a large Brazilian based international banking corporation that conducts business in the State of California. Plaintiff's Third Amended Complaint, filed August 14, 2008, ("TAC") ¶ 2. Plaintiff Wang & Wang LLP is a law firm with its principal place of business in San Francisco, California. TAC ¶ 1. Wang has served as outside counsel for Banco for nearly thirty years. Def's Motion for Summary Judgment, filed January 14, 2009, ("Def's Mot.") at 1:7-9. During their long relationship, Wang represented Banco in numerous transactional and litigation matters, and in return Banco consistently paid Wang for its services based on reasonable hourly rates. Pl's Motion for Summary Judgment, filed January 14, 2009, ("Pl's Mot.") at 3:1-5.
In December 2001, Wang represented Banco in a matter brought by World of Leisure Manufacturing Co. in the United States District Court for the Central District of California (hereinafter the "Underlying Litigation"). Def's Mot. at 1:14-16. The Underlying Litigation involved a $275,000 letter of credit dispute. Id. at 1:16. Wang billed Banco a total of $1,398,119.39 in attorneys' fees for the work performed in the Underlying Litigation. Id. at 4:22-23. Wang has never been paid for the work performed in the Underlying Litigation and as a result, has brought this suit against Banco, its client. Pl's Mot. at 2:4-7.
Wang's Third Amended Complaint alleges five causes of action: (1) Breach of Contract; (2) Fraud and Concealment; (3) Unfair Business Practices under Bus. & Prof. Code Sec. 17200; (4) Open Book Account; and (5) Quantum Meruit. Docket ("Doc.") # 49. On January 14, 2008, both parties filed motions for summary judgment. Doc. ## 86, 89. Wang's motion seeks summary judgment against Banco on the first and second causes of action, namely the breach of contract and fraud and concealment claims. Doc. # 89. Banco opposes the motion. Doc. # 105. Banco's motion for summary judgment requests the Court to grant summary judgment in its favor as to all five of Wang's claims. Doc. # 86. Wang opposes Banco's summary judgment motion in regards to four of the five claims. Doc. # 104. Wang does not oppose Banco's request for summary judgment on the third cause of action for Unfair Business Practices under Bus. & Prof. Code Sec. 17200. Id.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims and defenses." Cleotex v. Catrett, 477 U.S. 317, 323-324 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248-49 (1986). If the moving party meets its burden, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e) and citing Celotex, 477 U.S. at 323). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient: "There must be evidence on which the jury could reasonably find for [the non-moving party]." Anderson, 477 U.S. at 252. This Court thus applies to either a defendant's or plaintiff's motion for summary judgment the same standard as for a motion for directed verdict, which is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.
At the February 11, 2009 hearing on the parties' cross-motions for summary judgment, the Court raised the issue of the basis for the original filing of this matter in the Sacramento Superior Court and whether venue is proper in this Court. After considering the parties' briefs on this matter, the Court concludes that although the original filing of this action would have been proper in another district, removal of the action to the Eastern District of California was proper. See 28 U.S.C §1441(d). Accordingly, venue is proper in this Court and the case shall remain here, especially considering that the case is set for pretrial in March and the trial in April.
Plaintiff Wang's breach of contract claim is based on Banco's alleged breach of a written agreement entered into in 2000, known as the Legal Services Agreement. TAC ¶¶ 43-54. Wang asserts that Banco breached the Legal Services Agreement by refusing to pay its invoices for fees in the Underlying Litigation as specified by the agreement. TAC ¶ 53. Banco asserts the Legal Services Agreement expressly does not apply to litigation services and therefore, Wang's breach of a written contract claim must fail as a matter of law. Def's Mot. 11:12-25. To prevail on a breach of contract claim Wang must prove the following elements: (1) existence of the contract; (2) plaintiff's performance ...